Moore

The question to be determined grows out of a proceeding in the juvenile court of Sacramento County involving the adjudication of the dependency of certain minor children. A verified petition, as required by the “juvenile court law, ’ ’ was filed with the clerk of said court and a citation issued thereon. Subsequently, another verified petition was filed with the clerk of said court, entitled “an amended or supplemental petition,” and the jurisdiction of said court to proceed to the hearing on either petition is challenged here by an application for the writ of prohibition.

In response to the order to show cause issued herein, respondents have answered and a demurrer by petitioners to this answer presents the case for our determination.

It may be admitted that the first petition filed as aforesaid was fatally defective in accordance with the rule enunciated in Henley v. Superior Court, 162 Cal. 239 , [ 121 Pac. 921 ], and In re Mundell, 3 Cal. App. 472 , [ 86 Pac. 833 ], and gave the court no jurisdiction of the cause. The result is the same as though no proceeding whatever had been taken in the court below. The petition was so .much waste effort and could be ignored as a…

In the petition for rehearing it is stated that in the opinion hereinbefore filed an inaccuracy is found in the declaration that a citation followed the filing of said “amended” petition. It is true that the answer of respondents contains no specific allegation that such citation was issued, but nothing to the contrary appears in the pleadings and we must presume that the course pointed out by the statute was pursued. But the matter is of no consequence in this application, as the jurisdiction of the lower court is not attacked upon that ground. When the case comes on for hearing in the superior court, if the parties have not been properly served, advantage can be taken, of course, of the omission.

Petitioners are entirely mistaken in the assertion that we inadvertently passed upon the merits of the application.

Only two jurisdictional questions were argued and presented for determination, one relating to the insufficiency of the original petition in the court below and the want of authority to allow it to be amended, and the other related to the disqualification of the trial judge.

As to the first of these, no issue of fact is presented in the pleadings and we think it…